[This review was
published in The Journal of Social, Political and Economic Studies,
Summer 2003, pages 251-254 (and also in the Fall 2004 issue of the same journal,
by oversight of the editor, pp. 363-366), in an edited form.What follows is the review as submitted for
publication.]

Book Review

The Majesty of the Law:
Reflections of a Supreme Court Justice

Sandra Day O'Connor

Random House, 2003

This book by Justice O'Connor will no doubt be enjoyed by
many readers as a readable and not very heavy discussion of the United States
Supreme Court, highlights of its history and personalities, and personal
details about O'Connor's own experiences on the Court as the first woman
appointed to it.

At this level, the book must be credited as
"recommended reading."It
contains a number of worthwhile and instructive elements, such as a history of
habeas corpus, of Magna Carta, of the jury system, of the "reporter
system" early in the Court's history through which its decisions were
published, of the women's movement in the United States, and of the role of the
privy council in the colonies before the American Revolution.

O'Connor makes a number of valuable suggestions, say, for
improving the jury system, such as that jurors should be allowed to take notes
and that it shouldn't automatically disqualify a juror to have heard something
about the case.She recommends that
jurors should be instructed generally about the law applying the case before
they hear the testimony, so that they will have a conceptual framework into
which to fit the testimony as they hear it.As a lawyer, I have thought for many years that the courts' failure to
give jurors such a road map reflected an odd anti-conceptualism, as though
ideas don't count.So I am pleased to
see her recommendation.

There is a deeper reading of The Majesty of the Law,
however, that makes the book "recommended reading" for a very
different reason.Here, the instruction
from the book comes from what it tells us about O'Connor's mental landscape and
the role she sees for herself as a justice.Those are things very much worth knowing about and pondering carefully.

She was appointed by President Reagan, and therefore
started out presumptively as one of the "conservative" justices on
the Court.An important fact about the
Reagan presidency, however, is that he did a number of things that reflected
his being "a man of his time" and that weren't on the mark from the
ideological standpoint of his most fervent supporters.One of these was his desire "to be the
first to appoint a woman to the Court," even though O'Connor lacked
exemplary credentials (having been a trial judge and then a judge on a lower
state appellate court) and even though she wasn't philosophically committed to
a conservative worldview.

The fact that stands out most prominently from the book
for those who read it more contemplatively is that O'Connor is thoroughly
imbued with the worldview that today permeates the educated elite in the United
States.Her outlook is a comfortable
one, suiting her to a pleasant life on the Court.She is "politically correct" in her
support for an egalitarian make-over of American society even if that runs
counter to overwhelming public sentiment; she talks much of
"democracy" and "democratic process," but it is the
democracy of the egalitarian model and not of law and government's being
responsive to the existing public will; her heroes in the history of the Court
are the "liberal" justices who led the Court away from the old
classical liberal construction; she sees Americans as having more freedoms now
than they had in the past; and she is enthusiastic about what others speak of
as the neo-conservative project to make the United States the leader in
"shaping the world" in the image of contemporary American social
egalitarianism.

It isn't surprising that she holds this worldview.Most Americans in the broad "elite"
made up of the professional classes and the well-placed hold to it.

What is surprising is that O'Connor never gives a
moment's thought to what the specifically Constitutional basis for
incorporating that worldview into the United States' foundational document may
be.Others will ask: What business does
she have, as a Justice on the United States Supreme Court, to make that vision
"the law of the land"?Where
does she obtain that power as a judge?

American "liberals" have long argued that the
justices of the nineteenth century were illegitimate "activists" when
they incorporated a classical liberal reading into the Constitution.Two observations about this come to
mind.There are those who would ask
whether it was truly "activist" to have construed the Constitution in
light of the philosophy that prevailed at the time the Constitution was written
and during the first century of the country's existence.There is no doubt that the broad mandates (of
the Bill of Rights in particular) need construing.At one time it was common to suggest that a
construction in keeping with the original mindset would not be a usurpation
and, as such, would not require amendment through the amendatory process that
is set out in the Constitution itself.Such a construction would voice the "original intent" (at
least in a broad sense as distinguished from a narrow reading).

The second thought is that there is some disconnect if
one is to say that the nineteenth century classical liberal interpretation was
illegitimate activism on the ground that "it read Herbert Spencer's Social
Statics into the Constitution," while the person at the same time says
that an incorporation of the current egalitarian project is, as O'Connor
argues, a wholesome "democratic process" pursuant to "the Rule
of Law."If it is usurpation to
invest the Constitution with a social philosophy in the one case, why is it not
usurpation to invest it with a much later social philosophy in the other?

The reality, of course, is that the Supreme Court of the
United States has fashioned itself into a permanently sitting Constitutional
convention.Nine lifetime appointees are
given, and readily accept, the role of philosopher kings.The irony is that they do so in the name of
"democracy" and the "Rule of Law."

A term has come into use that describes the situation
well.It speaks of "totalitarian
liberalism."O'Connor and the
American governing class are for "democratic process," for
"women's and minority rights," and for "diversity," all of
which seems to them to fit into benign progress toward a better world; but she
is able to speak repeatedly of the need to give "unremitting
attention" to "pushing the country" and "changing minds
everywhere."The Supreme Court is a
"teacher," not merely an applier of established law.Americans in the past were
"separatist" and illiberal; Americans of the present stand in need of
an on-going refashioning; and Americans of the future will be admirable because
they will have become, in effect, a new and enlightened humanity.The vision is "liberalism" of a
sort; the "totalitarian" aspect comes from its being in the tradition
of the Jacobins and the Bolsheviks, who demanded the molding of humanity as
though people were clay.

One would wish that O'Connor would demonstrate some
consciousness of all this.She
doesn't.That failure allows her to be
well adjusted to the age in which she lives.Self-satisfaction and contentedness are the primary moods of the book.